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Norway > Legal Developments > Law firm and leading lawyer rankings

Editorial

IP LITIGATION IN NORWAY I ? The Courts

1. Introduction

All cases are heard by the ordinary courts, except those decided by other authorities and those very few which because of their specific nature are referred to special courts.

The ordinary courts comprise the following three instances; the District Courts (tingrett), the Courts of Appeal (lagmannsrett) and the Supreme Court (Høyesterett). Not all cases are heard by the Supreme Court, as this is subject to grant by the Appeals Committee of the Supreme Court.

As a general rule, all litigation has to commence before the Board of Conciliation (forliksråd). Each municipality has its own Board of Conciliation, consisting of three lay persons. The Board of Conciliation has limited powers, but can decide a case based on the complaining party’s representation of fact and law if the defendant fails to appear at the hearing. If both parties appear at the hearing, but no settlement is reached, the Board of Conciliation refers the case to the District Court. To continue the case, the complaining party must file a writ of summons with the competent court.

The exceptions to the rule that litigation must commence before the Board of Conciliation

are particularly relevant to intellectual property cases. First, all cases in which the District Court of Oslo has exclusive jurisdiction are exempt, cf. section 2.3 below. Second, if attorneys have been involved on both sides in the preliminary correspondence concerning the dispute. This second exception is of great practical importance in intellectual property cases, as attorneys almost always are involved from an early stage.

Third, if the plaintiff has filed a petition for an interim measure (interlocutory injunction) with a Court of Execution and Enforcement, a case on the full merits of the matter will always commence in the District Court.

2. Courts of first instance

2.1 The District Courts

Norway has 85 local jurisdictions, and each of them has a District Court. The number of local jurisdiction is being reduced, and will eventually be brought down to 63. In ordinary civil cases the District Court sits with a single legal judge. If the court so decides, or if one of the parties requests it, the court includes two lay judges. The court may decide or one of the parties may

request, that the two lay judges appointed should be experts in the particular business or technical field relevant to the case. In patent cases this is almost invariably the case. The legal judge is always presiding.

2.2 The Court of Execution and Enforcement

In some of the largest cities, the Court of Execution and Enforcement is separate from the District Court. The Courts of Execution and Enforcement decide on petitions for interim measures (interlocutory injunctions). These cases are heard by a legal judge, and there is no lay expert judge participating in the decision.

It should be noted that if an action has been brought before one of the ordinary courts, and one of the parties wishes to file a petition for an interlocutory injunction in the matter object of litigation, the petition should be filed with the ordinary court seized with the action.

2.3 The District Court of Oslo

The City Court of Oslo has exclusive jurisdiction in the following cases:

  1. cases concerning the cancellation of patents, registered trade marks and registered designs;
  2. cases concerning the annulment of decisions by the Second Division of the Patent Office to reject applications for registrations of patents, trade marks and designs;
  3. cases concerning the transfer of patent and design applications for registration to an alleged rightful owner, and cases concerning the transfer of patents, registered trade marks and registered designs to an alleged rightful owner;
  4. cases concerning decisions by the Second Division of the Patent Office on administrative re-examining of patents;
  5. all cases concerning patents, registered trade marks and registered designs or applications for such rights, if the defendant owner or applicant is not domiciled in Norway.

After the right owner has brought an infringement action before a district court (which is competent either because the infringer’s place of business is within its jurisdiction or because the infringement or damage occurred within its jurisdiction), the defendant often responds by filing an invalidity claim and cancellation action with the Oslo District Court. If the infringement action was commenced before a different district court, it will then normally be stayed pending a judgement in the cancellation case. However, this is a discretionary decision. Another approach is to file a request that the infringement action to be transferred to the Oslo District Court to be joined with the cancellation action.

3. The Courts of Appeal

There are six Courts of Appeal in Norway, called Lagmannsrett (Borgarting, Eidsivating, Gulating, Frostating, HĂĄlogaland, Agder). Each of them has jurisdiction over judgements of the courts of first instance in a specific geographical area. Cases are heard by three legal judges. A party may request that two or four lay judges be called to join the court. The court itself may also decide that lay judges be called to hear the case. As in the case of the courts of first instance, it may be requested and

decided that the lay judges have special expertise in a technical or other field, and in patent cases expert judges are almost always appointed.

4. The Supreme Court

The Supreme Court is the highest court of Norway. It is situated in Oslo and consists of a president and 18 judges. Appeals against judgements of the Courts of Appeal, and sometimes judgements of the courts of first instance are heard by five judges, except in rare cases where legal principles or the constitutionality of a law or certain other special matters are in dispute, in which cases the Supreme Court hears the case in plenary session.

The Appeal Committee of the Supreme Court, consisting of three judges, hears appeals against interlocutory orders of the lower courts, and decides if appeals against judgements of the Courts of Appeals are to be given leave to be heard by the Supreme Court.

5. Other courts and bodies with judicial power

In the larger cities, probate and bankruptcy courts are separate from the district courts. Further, the Industrial Tribunal in Oslo has judicial power in matters relating to collective employment law. These courts rarely deal with intellectual property cases, although in bankruptcy cases there are often disputes over contractual issues related to IP rights.

A mediation board for employees’ inventions has the power to determine the level of compensation owing to an employee who has made a patentable invention which the employer on certain conditions is entitled to exploit commercially.

The Norwegian Patent Office handles registrations of trade marks, patents and designs. Decisions by the First Division of the Norwegian Patent Office may be appealed to the Second Division. If the right applied for is not granted, the applicant may appeal, and if a right is granted, any party who has filed a notice of opposition is entitled to appeal the decision. The decision by the Second Division may be appealed to the District Court of Oslo, following the procedures of an ordinary civil action.

by

Amund Brede Svendsen
head of Grette’s IP department
amund.svendsen@grette.no

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